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SUPREME COURT OF TÑE STATE OF NEW YORK
COUNTY OF NEW YORK
X
T.G. NICKEL & ASSOCIATES, LLC, and Index No.: 652578/2018
T.G. NICKEL & ASSOCIATE$, LLC, as Assignee and
Subrogee of Trust Fund Beneficiary FESK SPECIAL
SYSTEMS INCORPORATED, on behalf of itselfand
on behalf of allothers entitled to share in the funds
received by AMPAK ELECTRICAL SERVICES, INC.
and its successor in interest and alterego, AMPAK
DATA & ELECTRICAL SERVICES, 1NC., as Trustee,
in connection with the improvement of realproperty
44*
known as 27-19 Drive, Long Island City,New York, SO ORDERED
Block 00268, Lot 8, and 44-12 and 44-16 Purvis Street, STIPULATION
Long Island City,New York, Block 00268, Lot 20,
Plaintiffs
-against-
AMPAK BLECTRICAL SERVICES, INC., AMPAK
DATA & ELECTRICAL SERVICES, INC., JOHN
ESPOSITO, MARIA CUCUZZA, NICK ROMEO,
1"
and "JOHN DOE No. through "JOHN DOE
100,"
No. said names being fictitious,true names being
those unknown individuals and/or entities liablefor the
diversion of trustfunds pursuant to Article 3-A of the
Lien Law of the Stateof New York, in connection with
44*
the construction project at 27-19 Drive, Long Island
City,New York, Block 00268, Lot 8, und 44-12 and
44-16 Purvis Street,Long Island City, New York,
Block 00268, Lot 20,
Defendants.
WHEREAS, on May 23, 2018, PlaintiffT.G. Nickel & Associates, LLC, individually
("T.G. Nickel"), and T.G. Nickel & Associates, LLC, as Assignee and Subrogee of Trust Fund
Beneficiary Fesk Special Systems Incorporated, on behalf of itselfand on behalf of all others
entitled to share in the funds received by Ampak Electrical Services, inc. and its successor in
interest and alterego, Ampak Data & ElectricalServices, Inc.,as Trustee, in commtion with the
44* 44-
construction project at 27-19 Drive, Long Island City,New York, Block 00268, Lot 8, and
12 and 44-16 Purvis Street, Long Island City, New York, Block 00268, Lot 20 ("PlaintiffT.G.
Nickel, as Trustee") com-menced thisAction by the filingof a Summons and Complaint; and
WHEREAS, on July 11, 2018, defendants Ampak Eicchical Services, Inc., Ampak Data
& Electrical Services, Inc., John Esposito, Maria Cucuzza and Nick Romeo "the
(cell.edti-vely
D±=·hits") appeared in thisAction by the filing of their Verified Answers; and
WHEREAS, on July 12, 2018, PlaintiffT.G. Nickel, individually, fileda Verified Reply
to the Verified Answer; and
WHEREAS, on July 26, 2018, the Defendants filed an Amended Verified Answer with
Affirmative Defenses and Cottnterclaim interposing a counterclaim on behalf of Ainpak
Electricalfor breach of contract against PlaintiffT.G. Nickel, individually; and
WHEREAS, on July 31, 2018, PlaintiffT.G. Nickel, individually filed a Verified Reply
to the Amended Verified Answer; and
WHEREAS, on October 24, 2018, plaintiffT.G. Nickel, as Trustee, filed a Motion for
Class Certification of the class of subcontractors, suppliers and nÃaterialmen who perfonned
Electrical the 44*
work for Ampak Services, Inc. for Watermark Project, 27-19 Drive, Long
Island City, New York; Block: 00268, Lot 8 and 44-12 and 44-16 Purves Street, Long Island
City, New York; Block 00268, Lot 20 ("Watermark Project"); and
WHEREAS, defendants Ampak Electrical Services, Inc., Ampak Data & Electrical
Services, Inc.,John Esposite, Maria Cucuzza and Nick Romeo have not filed any apposition to
the reliefrequested in the Motion for Class Certification; and
2
WHEREAS, on October 24, 2018, the Motion for Class Certification was subrducd to
the Court without opposition, and a.decision and order of the Court has not yet been filed;and
WHEREAS, defendants Ampak Electrical Services, Inc., Ampak Data & Elcctrical
Services, Inc. and John.Esposito (collectively the "Ampak Defendants") have provided plaintiff
T.G. Nickel, as Trustee, and the Court with an affidavit identifying each unpaid trust fund
beneficiary member of the class for the Watermark Project, and listingthe âñ1onüt each trust
fund beneficiary:has agreed to accept in full satisfaction of itsclaim for payment against Ampak
Electrical Services, Inc., Ampak Data & Electrical Services, Inc. and John Esposito for the
Watermark Project iirthis Action and the terms of each settlement (which do not require any
payment from Defendants Maria Cucuzza and Nick Romeo); and
WHEREAS, the parties hereto have agreed to a form of Notice of Settlement to the
Class, and a Final Release to be executed by each member in the Clas s of Trust Fund
Beneficiaries of the Watennark Project in se#lement of the Action ("Class Members").
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED TO BY AND
BETWEEN THE UNDERSIGNED ATTORNEYS AS FOLLOWS:
1. The schedule attached to the affidavit of John Esposito, President and sole
shareholder of Defendants Ampak Electrical Services, Inc. and Ampak Data & Electrical
Services, Inc , sworn to the ___ day of December 2018, annexed hereto as Exhibit 1 ("Ampak
Scliedüie"), lists all of the unpaid trust funds beneficiary class members for the Watermark
Project as represented by Defendenh Ampak Electrical Services, Inc., Ampak Data & Electrical
Services, inc. and John Esposito, and known to plaintiff T.G. Nickel & Associates, LLC, as
Trustee.
3
2. The Ampak Schedule lists all of the entities that shall concuMte the Class
Members.
3. The Ampak Schedule sets forth the payment terins that Defendants Ampak
Electrical Services, Inc;, Ampak Data & Electrical Services, Inc. and John Esposito represent
have been agreed to by allof the Class Members.
4. The form of letter attached hereto as Exhibit 2 ("Notice of Settlement") shall be
transmitted to allof the known Class Members listed on the Ampak certified mail -
Schedule, by
return receipt requested, within five (5) business days of this Court's endorsement of this
Stipulation.
5. The Final Release form ("Final Release") attached hereto as Exhibit 3 shall be
transmitted to each Class Mcmber to be exetated by each .ClassMember and returñêd to Arthur
J. SeMetis, Esq., Arthur J. Semetis, P.C., 286 Madison Avenue, Suite 1801, New York, New
tork 10017, counsel to lilaintiff
T.G. Nickel &. Associates, LLC, as Trustee ("Trustee Counsel"),
and shallbe held in escrow by Trustee Counsel pursuant to the terms of this Stipulation.
6. A Satisfaction of Lien form ("Lien Satisfaction"), where a Class Member has
fileda Notice of Mechanic's Lien on the real property of the Project, in the form attached hereto
as Exhibit 4, shall be executed by the appropriate Class Member and returned to Trustee
Counsel, as a condition precedent to the payment of the agreed to settlement amount set forthon
the Ampak Schedule, and shall be held in escrow by Trustee Counsel pursuant to the terms of
thisStipulation.
7. Trustee Counsel shall hold the executed Final Release and Lien Satisfaction in
escrow and shallrelease them to the appropriãte parties,and forfiling,as payment in fullis made
to each Class Member, as reported by each Class Member.
4
8. Any Class Member who does not retum the Final Release and Lien Satisfaction to
T.G. Nickel, as Trustee Counsel by , shall be excluded from the Class,
withoutprejudice to their claims.
9. Trustee Counsel shall provide a written report to the Court by no laterthan
setting forth the identity of all Class Members who have returned the
executed Final Release and Satisfaction of Lien (where required).
10. Darandanta Ampak Electrical Ampak Data & Electrical
Services, Inc., Services,
inc. and John Esposito shall to T.G. Nickel & LLC, as Trustee, the raaonnahla
pay Associates,
attorneys'
agreed to fees and costs in this Action in the amount of $10,000.00 within .one
hundred and eighty (180) days of the date of the Court's So-Ordered endcracmcat of this
Stipulation.
11. Upon tbe So-Ordering of this So-Ordered Stipulatics by The Honorable Andrea
Masley, J.S.C., Plaintiff, T.G. Nickel, as Trustee, shall execute the Release to Cucuzza and
Romeo, attached hereto as Exhibit 5 and provide same to the attorney for Cucuzza and Romeo.
12. Upon the So-Ordering of this So-Ordered Stipulation of Settlement by The
Henorable Andrea Masley, J.S.C., the attorneys for Plaintiff, T.G. Nickel, as Trustee, and
Cucuzza and Romeo shall filea Stipulation of Partial Discontinuance of the Lien Law Section
3A causes of action as to Gucuzza and Ronieo in the form attached hereto as Exhibit 6.
13. Upon Defendants Ampak Electrical Services, Inc., Ampak Date & Electrical
Services, Inc. and John Esposito's fulland final payment of the amounts reqñòsted to be paid by
this Su-Order Stipulation, Plaintiff,T.G. Nickel, as Trustee, shall execute the Release to the
Ampak Defenda.nts, attached hereto as Exhibit 7 and provide same to the attorney or the Ampak
Defandants, and the attorney for the Ampak Defendants and PlaintiffT.G. Nickel, as Trustee,
shall file a Stipulation of Partial Disconhuance of the Lien Law Section 3A section causes of
action as to the Ampak Defcad-± in the form attached hereto as Exhibit 8..
Dated: As of December 28, 2018
ARTHUR J. S TIS, P.C. WELBY, BRADY & GREENBLATT, LLP
By: B .
.LSemetis, Esq. on arlucci, .
Attorneys for Plaintiff Attorn Defendan
155
T.G. Nickel &Assoalettes, LLC, ittdividually 11 Avenue, Floor
286 Madiscñ Avenue, Suite 1801 White Plains, New York 10606
New York, New York 10017 (914) 428-2100
(212) 557-5055
ARTHUR J. SEMETIS, P.C.,
AS TRUSTEE C EL
By:
Arth . Semëtis, Esq.
Attorney r PlaintifT.G Nickel &
Associates, LLC, as TYustee, and the
Class Members
286 Madisoli Avenue, Suite 1801
New York, New York 10017
(212) 557-5055
SO ORDERED
Honorable Andrea Masley
J.S.C.
ajgdoc•cifgn•ampak
so-orderedAlp.
6
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SUPREME COURT OF TÑE STATE OF NEW YORK COUNTY OF NEW YORK X T.G. NICKEL & ASSOCIATES, LLC, and Index No.: 652578/2018 T.G. NICKEL & ASSOCIATE$, LLC, as Assignee and Subrogee of Trust Fund Beneficiary FESK SPECIAL SYSTEMS INCORPORATED, on behalf of itselfand on behalf of allothers entitled to share in the funds received by AMPAK ELECTRICAL SERVICES, INC. and its successor in interest and alterego, AMPAK DATA & ELECTRICAL SERVICES, 1NC., as Trustee, in connection with the improvement of realproperty 44* known as 27-19 Drive, Long Island City,New York, SO ORDERED Block 00268, Lot 8, and 44-12 and 44-16 Purvis Street, STIPULATION Long Island City,New York, Block 00268, Lot 20, Plaintiffs -against- AMPAK BLECTRICAL SERVICES, INC., AMPAK DATA & ELECTRICAL SERVICES, INC., JOHN ESPOSITO, MARIA CUCUZZA, NICK ROMEO, 1" and "JOHN DOE No. through "JOHN DOE 100," No. said names being fictitious,true names being those unknown individuals and/or entities liablefor the diversion of trustfunds pursuant to Article 3-A of the Lien Law of the Stateof New York, in connection with 44* the construction project at 27-19 Drive, Long Island City,New York, Block 00268, Lot 8, und 44-12 and 44-16 Purvis Street,Long Island City, New York, Block 00268, Lot 20, Defendants. WHEREAS, on May 23, 2018, PlaintiffT.G. Nickel & Associates, LLC, individually ("T.G. Nickel"), and T.G. Nickel & Associates, LLC, as Assignee and Subrogee of Trust Fund Beneficiary Fesk Special Systems Incorporated, on behalf of itselfand on behalf of all others entitled to share in the funds received by Ampak Electrical Services, inc. and its successor in interest and alterego, Ampak Data & ElectricalServices, Inc.,as Trustee, in commtion with the 44* 44- construction project at 27-19 Drive, Long Island City,New York, Block 00268, Lot 8, and 12 and 44-16 Purvis Street, Long Island City, New York, Block 00268, Lot 20 ("PlaintiffT.G. Nickel, as Trustee") com-menced thisAction by the filingof a Summons and Complaint; and WHEREAS, on July 11, 2018, defendants Ampak Eicchical Services, Inc., Ampak Data & Electrical Services, Inc., John Esposito, Maria Cucuzza and Nick Romeo "the (cell.edti-vely D±=·hits") appeared in thisAction by the filing of their Verified Answers; and WHEREAS, on July 12, 2018, PlaintiffT.G. Nickel, individually, fileda Verified Reply to the Verified Answer; and WHEREAS, on July 26, 2018, the Defendants filed an Amended Verified Answer with Affirmative Defenses and Cottnterclaim interposing a counterclaim on behalf of Ainpak Electricalfor breach of contract against PlaintiffT.G. Nickel, individually; and WHEREAS, on July 31, 2018, PlaintiffT.G. Nickel, individually filed a Verified Reply to the Amended Verified Answer; and WHEREAS, on October 24, 2018, plaintiffT.G. Nickel, as Trustee, filed a Motion for Class Certification of the class of subcontractors, suppliers and nÃaterialmen who perfonned Electrical the 44* work for Ampak Services, Inc. for Watermark Project, 27-19 Drive, Long Island City, New York; Block: 00268, Lot 8 and 44-12 and 44-16 Purves Street, Long Island City, New York; Block 00268, Lot 20 ("Watermark Project"); and WHEREAS, defendants Ampak Electrical Services, Inc., Ampak Data & Electrical Services, Inc.,John Esposite, Maria Cucuzza and Nick Romeo have not filed any apposition to the reliefrequested in the Motion for Class Certification; and 2 WHEREAS, on October 24, 2018, the Motion for Class Certification was subrducd to the Court without opposition, and a.decision and order of the Court has not yet been filed;and WHEREAS, defendants Ampak Electrical Services, Inc., Ampak Data & Elcctrical Services, Inc. and John.Esposito (collectively the "Ampak Defendants") have provided plaintiff T.G. Nickel, as Trustee, and the Court with an affidavit identifying each unpaid trust fund beneficiary member of the class for the Watermark Project, and listingthe âñ1onüt each trust fund beneficiary:has agreed to accept in full satisfaction of itsclaim for payment against Ampak Electrical Services, Inc., Ampak Data & Electrical Services, Inc. and John Esposito for the Watermark Project iirthis Action and the terms of each settlement (which do not require any payment from Defendants Maria Cucuzza and Nick Romeo); and WHEREAS, the parties hereto have agreed to a form of Notice of Settlement to the Class, and a Final Release to be executed by each member in the Clas s of Trust Fund Beneficiaries of the Watennark Project in se#lement of the Action ("Class Members"). NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED TO BY AND BETWEEN THE UNDERSIGNED ATTORNEYS AS FOLLOWS: 1. The schedule attached to the affidavit of John Esposito, President and sole shareholder of Defendants Ampak Electrical Services, Inc. and Ampak Data & Electrical Services, Inc , sworn to the ___ day of December 2018, annexed hereto as Exhibit 1 ("Ampak Scliedüie"), lists all of the unpaid trust funds beneficiary class members for the Watermark Project as represented by Defendenh Ampak Electrical Services, Inc., Ampak Data & Electrical Services, inc. and John Esposito, and known to plaintiff T.G. Nickel & Associates, LLC, as Trustee. 3 2. The Ampak Schedule lists all of the entities that shall concuMte the Class Members. 3. The Ampak Schedule sets forth the payment terins that Defendants Ampak Electrical Services, Inc;, Ampak Data & Electrical Services, Inc. and John Esposito represent have been agreed to by allof the Class Members. 4. The form of letter attached hereto as Exhibit 2 ("Notice of Settlement") shall be transmitted to allof the known Class Members listed on the Ampak certified mail - Schedule, by return receipt requested, within five (5) business days of this Court's endorsement of this Stipulation. 5. The Final Release form ("Final Release") attached hereto as Exhibit 3 shall be transmitted to each Class Mcmber to be exetated by each .ClassMember and returñêd to Arthur J. SeMetis, Esq., Arthur J. Semetis, P.C., 286 Madison Avenue, Suite 1801, New York, New tork 10017, counsel to lilaintiff T.G. Nickel &. Associates, LLC, as Trustee ("Trustee Counsel"), and shallbe held in escrow by Trustee Counsel pursuant to the terms of this Stipulation. 6. A Satisfaction of Lien form ("Lien Satisfaction"), where a Class Member has fileda Notice of Mechanic's Lien on the real property of the Project, in the form attached hereto as Exhibit 4, shall be executed by the appropriate Class Member and returned to Trustee Counsel, as a condition precedent to the payment of the agreed to settlement amount set forthon the Ampak Schedule, and shall be held in escrow by Trustee Counsel pursuant to the terms of thisStipulation. 7. Trustee Counsel shall hold the executed Final Release and Lien Satisfaction in escrow and shallrelease them to the appropriãte parties,and forfiling,as payment in fullis made to each Class Member, as reported by each Class Member. 4 8. Any Class Member who does not retum the Final Release and Lien Satisfaction to T.G. Nickel, as Trustee Counsel by , shall be excluded from the Class, withoutprejudice to their claims. 9. Trustee Counsel shall provide a written report to the Court by no laterthan setting forth the identity of all Class Members who have returned the executed Final Release and Satisfaction of Lien (where required). 10. Darandanta Ampak Electrical Ampak Data & Electrical Services, Inc., Services, inc. and John Esposito shall to T.G. Nickel & LLC, as Trustee, the raaonnahla pay Associates, attorneys' agreed to fees and costs in this Action in the amount of $10,000.00 within .one hundred and eighty (180) days of the date of the Court's So-Ordered endcracmcat of this Stipulation. 11. Upon tbe So-Ordering of this So-Ordered Stipulatics by The Honorable Andrea Masley, J.S.C., Plaintiff, T.G. Nickel, as Trustee, shall execute the Release to Cucuzza and Romeo, attached hereto as Exhibit 5 and provide same to the attorney for Cucuzza and Romeo. 12. Upon the So-Ordering of this So-Ordered Stipulation of Settlement by The Henorable Andrea Masley, J.S.C., the attorneys for Plaintiff, T.G. Nickel, as Trustee, and Cucuzza and Romeo shall filea Stipulation of Partial Discontinuance of the Lien Law Section 3A causes of action as to Gucuzza and Ronieo in the form attached hereto as Exhibit 6. 13. Upon Defendants Ampak Electrical Services, Inc., Ampak Date & Electrical Services, Inc. and John Esposito's fulland final payment of the amounts reqñòsted to be paid by this Su-Order Stipulation, Plaintiff,T.G. Nickel, as Trustee, shall execute the Release to the Ampak Defenda.nts, attached hereto as Exhibit 7 and provide same to the attorney or the Ampak Defandants, and the attorney for the Ampak Defendants and PlaintiffT.G. Nickel, as Trustee, shall file a Stipulation of Partial Disconhuance of the Lien Law Section 3A section causes of action as to the Ampak Defcad-± in the form attached hereto as Exhibit 8.. Dated: As of December 28, 2018 ARTHUR J. S TIS, P.C. WELBY, BRADY & GREENBLATT, LLP By: B . .LSemetis, Esq. on arlucci, . Attorneys for Plaintiff Attorn Defendan 155 T.G. Nickel &Assoalettes, LLC, ittdividually 11 Avenue, Floor 286 Madiscñ Avenue, Suite 1801 White Plains, New York 10606 New York, New York 10017 (914) 428-2100 (212) 557-5055 ARTHUR J. SEMETIS, P.C., AS TRUSTEE C EL By: Arth . Semëtis, Esq. Attorney r PlaintifT.G Nickel & Associates, LLC, as TYustee, and the Class Members 286 Madisoli Avenue, Suite 1801 New York, New York 10017 (212) 557-5055 SO ORDERED Honorable Andrea Masley J.S.C. ajgdoc•cifgn•ampak so-orderedAlp. 6